Joint Ministerial Decree

1/25/2011

Page Image

Page Content

JOINT MINISTERIAL DECREE

THE CHIEF JUSTICE OF THE SUPREME COURT OF THE REPUBLIC OF INDONESIA,THE ATTORNEY GENERAL OF THE REPUBLIC OF INDONESIA,THE CHIEF OF THE NATIONAL POLICE OF THE REPUBLIC OF INDONESIATHE MINISTER OF JUSTICE AND HUMAN RIGHTS OF THE REPUBLIC OF INDONESIA,

THE MINISTER OF SOCIAL AFFAIRS OF THE REPUBLIC OF INDONESIA, ANDTHE MINISTER OF WOMEN EMPOWERMENT AND CHILD PROTECTION OFTHE REPUBLIC OF INDONESIA

PROMOTING AND PROTECTING THE RIGHTS OF CHILDREN IN CONFLICT WITH THE LAW

BY THE GRACE OF GOD ALMIGHTY

THE CHIEF JUSTICE OF THE SUPREME COURT OF THE REPUBLIC OF INDONESIA,THE ATTORNEY GENERAL OF THE REPUBLIC OF INDONESIA,THE CHIEF OF NATIONAL POLICE OF THE REPUBLIC OF INDONESIA, ,THE MINISTER OF JUSTICE AND HUMAN RIGHTS OF THE REPUBLIC OF INDONESIA,

THE MINISTER OF SOCIAL AFFAIRS OF THE REPUBLIC OF INDONESIA, ANDTHE MINISTER OF WOMEN EMPOWERMENT AND CHILD PROTECTION OFTHE REPUBLIC OF INDONESIA

Taking into consideration:

a.that children as the nation’s future generation are entitled to protection both physically, mentally, and socially, to ensure that they grow and develop healthilyand normally, including those who are in conflict with the law;

b.that the current approaches in promoting and protecting the rights of children in conflict with the law by law enforcement agencies has not indicated a significant progress of protection in line with its legislations;

c.that to improve the approaches in promoting and protecting the rights of children in conflict with the law in accordance to the legislation as referred in letter b, there is a need for an integrated cooperation between law enforcement agencies in an integrated juvenile justice system to meet the best interests of the children;

d.that a Restorative Justice approach should serve as the basis for the implementation of an integrated juvenile justice system for children in conflict with the law;

e.that based on the considerations as referred in letter a, b, c, and d, there is a need to establish a Joint Ministerial Decree by the Chief Justice of the Supreme Court of the Republic of Indonesia, the Attorney General of the Republic of Indonesia, the Chief of National Police of the Republic of Indonesia, the Minister of Justice and Human Rights of the Republic of Indonesia, the Minister of Social Affairs of the Republic of Indonesia and the Minister of Woman Empowerment and Child Protection of the Republic of Indonesia.

Bearing in mind:

1.The Constitution of 1945, Article 28 B section (2);

2.The Act No. 14 of 1995 on the Supreme Court (State Gazette of the Republic of Indonesia of 1985 No. 73, Additional State Gazette of the Republic of Indonesia No. 3316) as amended by the Act No.3 of 2009 (State Gazette of the Republic of Indonesia No.3, Additional State Gazette of the Republic of Indonesia No. 4958);

3.The Act No. 12 of 1995 on Community Affairs (State Gazette of the Republic of Indonesia No, 77 of 1995, Additional State Gazette of the Republic of Indonesia No. 3614);

4.The Act No.3 of 1997 on the Children’s Court (State Gazette of the Republic of Indonesia No.3 of 1997, Additional State Gazette of the Republic of Indonesia, No. 3668);

5.The Act No. 39 of 1999 on Human Rights (State Gazette of the Republic of Indonesia No. 165 of 1999, Additional State Gazette of the Republic of Indonesia No. 3886);

6.The Act No.2 of 2002 on National Police of the Republic of Indonesia (State Gazette of the Republic of Indonesia No. 2 of 2002, Additional State Gazette of the Republic of Indonesia No. 4168);

7.The Act No. 23 of 2002 on Child Protection (State Gazette of the Republic of Indonesia No. 109 of 2002, Additional State Gazette of the Republic of Indonesia No. 4235);

8.The Act No. 16 of 2004 about the Attorney General of the Republic of Indonesia (State Gazette of the Republic of Indonesia No. 4401);

9.The Act No. 13 of 2006 on Witness and Victim Protection (State Gazette of the Republic of Indonesia No. 64 of 2006, Additional State Gazette of the Republic of Indonesia No. 4635);

10.The Act No. 11 of 2009 on Social Welfare (State Gazette of the Republic of Indonesia No. 4967);

11.The Act No. 48 of 2009 on Judiciary’s Power (State Gazette of the Republic of Indonesia No. 157 of 2009, Additional State Gazette No. 5076);

12.The Presidential Decree No. 36 of 1990 on the Ratification of the Convention on the Rights of Childs (State Gazette of the Republic of Indonesia No. 57 of 1990);

13. Resolution Council of United Nations No. 40/33 date of 29 November 1985 on the United Nations Regulations on Minimum Standards of Administrations of Juvenile Justice (Beijing Rules);

14. Resolutions of United Nations No. 663C (XXIV) of 1957 date 31 July 1957, and Resolutions of United Nations No. 2076 (LXII) of 1977 date of 13 May 1977 on minimum standards treatment to prisoners.

15. Resolutions of United Nations No. 45/114 date of 14 December 1990 on the United Nations Regulations on the Protection of Children deprived of liberty;

16. Resolutions of United Nations No. 45/112 date of 14 December 1990 on the United Nations Guidelines on Child Crime Prevention (Riyadh Guidelines).

HEREBY RESOLVE AND MAKE:

A JOINT MINISTERIAL DECREE OF THE CHIEF JUSTICE OF THE SUPREME COURT OF THE REPUBLIC OF INDONESIA, THE ATTORNEY GENERAL OF THE REPUBLIC OF INDONESIA, THE CHIEF OF NATIONAL POLICE OF THE REPUBLIC OF INDONESIA, THE MINISTER OF JUSTICE AND HUMAN RIGHTS OF THE REPUBLIC OF INDONESIA, THE MINISTER OF SOCIAL AFFAIRS OF THE REPUBLIC OF INDONESIA AND THE MINISTER OF WOMEN EMPOWERMENT AND CHILD PROTECTION OF THE REPUBLIC OF INDONESIA

CHAPTER 1

GENERAL PROVISION

Article 1

The Joint Ministerial Decree defines that:

1.Children are those who have not reached the age of 18 (eighteen) years, including babies who are still in the womb.

2.Children in conflict with the law are children who come into contact with the law and victims of crime

3.Children as witnesses of crime are children who see, hear, and/or experience a crime.

4.Family is the smallest unit in a society consisting of a husband and a wife; or a husband, a wife and children; or a father and children; or a mother and children; or blood relatives in a straight hereditary line up or down until the third degree.

5.Restorative Justice approach is a just settlement approach involving perpetrators, victims, their families and other parties involved in a crime, to jointly look for a solution to the crime and its implications, emphasizing the restoration to the previous condition.

6.An Integrated Service Center (Pusat Pelayanan Terpadu), hereinafter abbreviated as PPT, is a functional unit that carries out an integrated service to witnesses and /or victims of violence against women and children.

7.A Special Services Room (Ruang Pelayanan Khusus), hereinafter abbreviated as RPK, is a safe and comfortable room designed specifically for witnesses and/ or victims of crime including criminal suspects who consist of women and children who deserve to be specially treated or require a special treatment while their case is being processed at the police station.

8.A Service Unit for Women and Children (Unit Pelayanan Perempuan dan Anak) hereinafter abbreviated as PPA is a unit which will provide services, in the form of protection for women and children who are being victims of crime and law enforcement against the perpetrators.

9.The Marsudi Putra Social Institution (Panti Sosial Marsudi Putra), hereinafter abbreviated as PSMP, is a service unit that provides protection, restoration, rehabilitation, advocacy, and reunification for children in conflict with the law.

10.A House of Social Protection of Children (Rumah Perlindungan Sosial Anak), hereinafter abbreviated as RPSA is a service unit that provides protection, restoration, rehabilitation, advocacy, and reunification for children who need special protection.

11.A Trauma Center is an institution or care centre to provide support in order to eradicate or eliminate trauma in the victims of an act of violence suffered by victims or their family members.

12.A networking of agencies who are dealing with children in conflict with the law is a network consisting of various institutions and agencies dealing with children in conflict with the law including: the police, prosecutors, courts, correctional [correctional board/bapas, detention center/rutan, correctional institution/lapas] and legal aid agencies, local governments, social organizations, education institutions, religious institutions, health institutions, mass media, and nongovernmental organizations.

Article 2

The Joint Ministerial Decree is intended to promote tighter coordination between law enforcement agencies and all relevant institutions in dealing with children in conflict with the law.

Article 3

The objectives of the Joint Ministerial Decree are:

a.to create a shared and common understanding among agencies in dealing with children in conflict with the law;

b.to enhance coordination and cooperation in ensuring special protection for children in conflict with the law;

c.to enhance the effectiveness of the handling of children in conflict with the law in a systematic, comprehensive, sustainable, and integrated approach.

Article 4

The Joint Ministerial Decree regulates approaches in promoting and protecting the rights of children in conflict with the law, including approaches at the stage of investigation, prosecution, trial, coaching, mentoring, service, in addition to correctional training and further handling after a court decision.

CHAPTER II

THE IMPLEMENTATION OF THE PROMOTION AND PROTECTION OF THE RIGHTS OF CHILDREN IN CONFLICT WITH THE LAW

Article 5

The approaches in promoting and protecting the rights of children in conflict with the law are carried out by:

a.The Chief Justice of the Supreme Court of the Republic of Indonesia;

b.The Attorney General of the Republic of Indonesia;

c.The Chief of National Police of the Republic of Indonesia,

d.The Minister of Justice and Human Rights of the Republic of Indonesia;

e.The Minister of Social Affairs;

f.The Minister of Woman Empowerment and Child Protection of the Republic of Indonesia.

in accordance with their duties and authority respectively.

Article 6

The duties and authority of the Supreme Court of the Republic of Indonesia in promoting and protecting the rights of children in conflict with the law as meant in Article 5 consist of:

preparing judges and clerks in every district court who have interest, capabilities, curiosity and dedication with certification in the field of children;

b.publishing a Circular Letter of the Supreme Court on Regulations of the Supreme Court to formulate standard operating procedures on dealing with children in conflict with the law based on a Restorative Justice approach;

c.forming a Working Group on Children in Conflict with the Law;

d.undertaking an internal socialization within the Supreme Court; and

e.enhancing the effectiveness of the function of the Chief Justice of the High Court in providing a guidance and supervision of the trial in their jurisdiction.

Article 7

The duties and authority of the Attorney General of the Republic of Indonesia in promoting and protecting the rights of children in conflict with the law as meant in Article 5 consist of:

a.undertaking prosecution in the light of the best interest of the children in conflict with the law;

b.preparing juvenile prosecutors and administration staff in every attorney’s office who have interests, capabilities, curiosity and dedication with certification in the field of children;

c.providing a special investigation room for children in every Attorney office.

d.convening regular discussions and necessary trainings;

e.compiling manuals/guidelines, or standard operating procedures on dealing with children in conflict with the law based on restorative justice approach;

f.forming a Working Group on Children in Conflict with the Law;

g.undertaking an internal socializationwithin the Attorney General’s office; and

h.enhancing the effectiveness of the function of the Chief Attorney Office in providing counseling and oversight on the prosecution.

Article 8

The duties and authority of the National Police of the Republic of Indonesia in promoting and protecting the rights of children in conflict with the law as meant in article 5 consist of:

a.preparing investigators at the National Police Office and regional offices who have the interest, capabilities, curiosity and dedication with certification in the field of children;

b.providing a special investigation room for children at the National Police Office and regional offices;

c.convening regular discussions and necessary trainings;

d.compiling manual/guidelines, or standard operating procedures on dealing with children in conflict with the law based on a Restorative Justice approach;

e.forming a Working Group on Children in Conflict with the Law; and

f.undertaking an internal socialization which in practice could cooperate with other institutions.

Article 9

The duties and authority of the Ministry of Justice and Human Rights of the Republic of Indonesia in promoting and protecting the rights of children in conflict with the law as meant in article 5 consist of:

a.formulating policies, programs, and activities at correctional institutions to promote and protect the rights of children in conflict with the law;

b.enhancing social services, counseling, monitoring, and support of children in conflict with the law;

c.providing correctional institutions with the supervisors and officials who have the interests, capabilities, curiosity and dedication with certification on the field of children;

d.enhancing services for research, counseling, monitoring and support to children who are convicted to be monitor or to be returned to their parents, and to children requiring after care;

e.preparing facilities and infrastructure for children’s development, counseling and treatment;

f.preparing a special room for child detainees at detention centers and correctional institutions;

h.compiling standard operational procedures on dealing with children in conflict with the law based on a Restorative Justice approach;

i.forming a Working Group on Children in Conflict with the Law; and

j.undertaking an internal socialization within the Ministry of Justice and Human Rights.

Article 10

(1 )The duties and authority of the Ministry for Social Affairs of the Republic of Indonesia in promoting and protecting the rights of children in conflict with the law as meant in article 5 consist of :

a.preparing social workers from the national level to the provincial levels on the social service of children in conflict with the law who has the interest, capabilities, curiosity and dedication with certification in the field of children;

b.facilitating the service of Social Care Centre Marsudi Putra, children’s social protection house and trauma centre for children in conflict with the law;

c.encouraging and strengthening the role of family, community, and social organization or Non-Governmental Organization to promote and protect the rights of children in conflict with the law;

d.compiling manuals or guidelines, and standard operational procedures for the protection and social rehabilitation of children in conflict with the law;

e.forming a Working Group on dealing of children in conflict with the law; and

f.undertaking an internal socialization within the Ministry of Social Affairs.

(2) Further provision on the Protection and Social Rehabilitation of Children in conflict with the Law is regulated by the existing regulations.

Article 11

The duties and authority of the Ministry of Women Empowerment and Child Protection of the Republic of Indonesia in promoting and protecting the rights of children in conflict with the law as meant in article 5 consist of:

a.formulating policies on children in conflict with the law;

b.undertaking coordination with relevant institutions;

c.conducting socialization, advocacy, and facilitation;

d.encouraging the involvement of community;

e.convening trainings;

f.forming a Working Group on Children in Conflict with the Law;

g.compiling manuals or guidelines, and standard operating procedures of children in conflict with the law;

h.undertaking an internal socialization within the Ministry of Women Empowerment and Child Protection; and

i.undertaking the oversight, analysis, evaluation and reporting.

CHAPTER III

PROMOTING AND PROTECTING THE RIGHTS OF CHILDREN IN CONFLICT WITH THE LAW

Article 12

Dealing with children in conflict with the law consists of:

a.children as offenders ;

b.children as victims ; and

c.children as crime witnesses.

Article 13

Approaches in promoting and protecting the rights of children as crime offenders include:

a.investigators undertaking a case of children in conflict with the law based on a restorative justice approach in the best interest of the child are obliged to involve correctional institutions, parents and/or the victim’s family and crime offenders and also local leaders;

b.correctional institutions are obliged to write a research report;

c.children who are detained shall be separated from the adult prisoners or sent to a detention house specifically for children;

d.the investigation and the handing over of documents of the case to the public prosecutor are undertaken with the involvement of the judicial review team of the correctional institutions;

e.if the public prosecutorbelieves from the result of the investigation and research that a prosecution could be made through a Restorative Justice approach, then the public prosecutor transfers the documents bearing on the case to the District Court;

f.after receiving documents from the public prosecutor, a Judge undertakes a trial through a Restorative Justice approach;

g.if the Judge’s verdict is in the form of action, then the correctional institutions are obliged to undertake counseling and monitoring;

h.counseling and treatment at the correctional institutions or detention centre are conducted in an integrated manner involving relevant institutions; and

i.if the Judge’s verdict is to transfer the children in conflict with the law to the Social Service, then the Social Service is obliged to accept and prepare facilities and equipment for the social recovery and rehabilitation of the children.

Article 14

Approaches in promoting and protecting the rights of children as victims of acts of injustice acts include:

a.after receiving report from the victims of an unjust act, the investigator conducts a preliminary interview ;

b.in the conduct of the interview, the investigator considers the situation and condition of the victims ;

c.if the victims require further treatment, after the preliminary interview the victims can be treated or placed in a special temporary room for other required services such as medical treatment orpsychology and social examination within the context of research and investigation;

d.after the victims recover and all services including the law process are completed, the victims can be sent home or transferred to the protection house for children or to trauma centers for mental and social rehabilitation.

Article 15

Approaches in promoting and protecting the rights of children as witnesses of acts of injustice include:

a.if children report as witnesses, the police should contact their parents or guardians of the children, unless the parents or guardian of the children concerned are involved or presumed to be the offenders;

b.create identification records based on the data of the children and the chronology of events;

c.request parents or guardians trusted by the children to accompany the children when providing testimony;

d.the testimony by children in the process of investigation should be conducted at a special and closed room accompanied by parents/guardians with consideration of their ages, intellectual capacity, and the importance of thetestimony;

e.children are entitled to protection from the institution providing protection to witnesses and victims, according to the provision of the existing laws and regulations;

f.if the children require medical care, they shall be referred to the closest hospital;

g.in every stage of an investigation, the children as witnesses shall be accompanied.

CHAPTER IV

FACILITIES AND INFRASTRUCTURE

Article 16

In promoting and protecting of the rights of children in conflict with the law, agencies utilize the available facilities and infrastructure of the interested parties.

CHAPTER V

COORDINATION AND COMMUNICATION

Article 17

(1)in carrying out the implementation of the Joint Decision, a coordination meeting is conducted at least once every six months facilitated by the Ministry for Women Empowerment and Child Protection.

(2)the coordination meeting as meant in article (1) is attended by the head or deputy of the institutions given the responsibilities by the decision makers.

(3)coordination as meant in article (1) is conducted at the central/national and regional levels.

Article 18

In order to implement the above-mentioned approaches in promoting and protecting the rights of children in conflict with the law, a network and an inter-institutional cooperation between professional organizations, civil society organizations and experts/academics are required at the national and regional levels.

CHAPTER VI

OVERSIGHT, EVALUATION, AND REPORTING

Article 19

(1)Concerned parties are obliged to undertake oversight and evaluation then report the implementation of the Joint Decision at the national and regional levels.

(2)Reporting as meant in article (1) is stated at the coordination forum.

CHAPTER VII

PAYMENT

Article 20

All payment required for the implementation of this Joint Ministerial Decree is taken from the budget of respective institutions

CHAPTER VIII

CLOSING STIPULATION

Article 21

The Joint Ministerial Decree will enter into force after promulgation. In the future, due to development or amendment of regulations and laws; necessary changes will be made.